For the last ten years, criminal defense attorneys have thought of Michigan sentencing guidelines were unconstitutional. In Apprendi v New Jersey, the Court held that a State could not avoid the reasonable doubt standard by shifting elements of a criminal offense to the sentencing phase. The Court stated that factors which raised penalties are de facto elements which must be proven beyond a reasonable doubt to a jury. Over the last ten years, the Michigan Supreme Court has continuously rejected this argument despite the fact that the United States Supreme Court has been consistently expanding the Apprendi doctrine. Last year, I blogged about a United States Supreme Court rolling called Alleyne v United States, 570 US ___; 133 S Ct 2151; 186 L Ed 2d 314 (2013), which I thought was the last nail in this flawed argument’s “coffin.” How wrong I was.Yesterday, a panel of Michigan Court of Appeals rejected the Elaine challenge in People v Herron, Court of Appeals No. 309320. The court distinguished every United States Supreme Court case along this line based and distinctions which this author believes are irrelevant. If they willing of our Court of Appeals is mirrored by the Michigan Supreme Court, the only remedy that a defendant world will receive is likely to be from the United States Supreme Court. Stay tuned, this issue is far from over.Mr. Herron is represented by Christine Pagac at the State Appellate Defender’s Offender’s Office.

A decade ago, we were objecting to the Michigan Sentencing Guidelines (our state’s presumptive sentencing) scheme arguing that it violated the Defendant’s right to a jury trial. Following the Michigan Supreme Court’s 2006 ruling in People v. Drohan, 475 Mich. 140, 159–164; 715 NW2d 778 (2006), these challenges largely died. The United States Supreme Court has agreed to hear a case which again put the guidelines at risk. Alleyne v. United States, Supreme Court No. 11-9335. Counsel should again start demanding jury trials on guideline issues and objecting to the guidelines being use as anything beyond advisory guidelines. Read More...